How Do You Solve a Problem Like in Kelo?
43 Pages Posted: 28 Feb 2007
This article analyzes one of the most controversial recent U.S. Supreme Court decisions and demonstrates that the common perception of the Kelo case, that now the government can take any property under the 5th Amendment if they simply allege or show that the new use of the property will achieve a higher economic use, is a misreading of the majority and concurring opinions in Kelo. The article then argues that the Kelo decision is still very troubling for the dicta in the majority, concurring, and even Justice O'Connor's dissenting opinion, that judges should show extreme deference to a legislative judgment of public use and not to "second guess" legislative judgments. The article then reviews all of the cases cited to by the Court in Berman and Midkiff (the two key cases relied upon by the Court in Kelo) and demonstrates that none of them provide support for this extreme judicial deference in the context of a non-traditional taking. Consequently, the Court is in a very strong position to re-examine the continued applicability of this deferential approach in the context of non-traditional takings. Rather than interpret public use to exclude all such non-traditional exercises of eminent domain, this article suggests that an approach that better comports with the legitimate functions of the legislative and judicial branches is for courts to more closely scrutinize these takings to make sure that the alleged public benefits from the taking are real rather pretextual or highly speculative and to increase the level of review when the taking will lead to high uncompensated subjective values to home owners. The article concludes by developing three distinct categories of takings and specific appropriate levels of judicial review and legislative burdens for each category in order to restore the system of checks and balances between the legislative and judicial branches that are essential to the American Constitutional system.
Keywords: Constitutional Law, Fifth Amendment, Kelo Decision
JEL Classification: H70, O10
Suggested Citation: Suggested Citation
Do you have a job opening that you would like to promote on SSRN?
Overcoming Poletown: County of Wayne V. Hathcock, Economic Development Takings, and the Future of Public Use
By Ilya Somin
Controlling the Grasping Hand: Economic Development Takings After Kelo
By Ilya Somin
The 'Backlash' so Far: Will Americans Get Meaningful Eminent Domain Reform?
Symbol or Substance? An Empirical Assessment of State Responses to Kelo
Pass a Law, Any Law, Fast! State Legislative Responses to the Kelo Backlash
By Edward J. Lopez, R. Todd Jewell, ...
Takings and Public Choice: The Persuasion of Price
Kelo and its Discontents: The Worst (or Best?) Thing to Happen to Property Rights
By Edward J. Lopez and Sasha M. Totah
Property Takings in Developed Versus Developing Countries: Economics, Politics, and the Limits of the Holdout Problem